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Justice denied

This month we reach into the mailbag for some head-scratching issues regarding the CVOR.Q: My driver was involved in an accident in Toronto. What really bugs me is the accident report, and the way the...


This month we reach into the mailbag for some head-scratching issues regarding the CVOR.

Q: My driver was involved in an accident in Toronto. What really bugs me is the accident report, and the way the CVOR system works. I get four CVOR points because it’s a property damage accident, including two because the investigating officer notes a so-called driver impropriety, and yet another two because the driver was charged with an offence under the Highway Traffic Act. (careless driving). Obviously, we will defend this matter, and as noted from the pictures and the driver statement, I am confident that the charging officer will lose this one. So then what? The Crown fails to prove its case and my driver wins in the sense that he doesn’t get six-demerit points on his license. But I’m screwed because I still wind up with four CVOR points as noted. What kind of a fair system is this?

A: You have hit a sore point with a lot of carriers. Had your driver not been charged, and had there been no noted driver impropriety, while the accident would be recorded on your CVOR abstract, there would be no CVOR points whatever. As you note, there was an impropriety and a charge was laid. So without even going to court there are four CVOR points. Go to court beat the charge and there are still four CVOR points.

It seems unfair to me that CVOR points remain on the record where there is a court proceeding that results in a dismissal, or in the event the Crown withdraws the charge. Think about it. The Court hears the evidence of the Crown and the defence, and the matter is dismissed. It’s logical I think, that the charge should not have been laid, and while the “driver impropriety” may still have taken place, it may not have either. In my view, if a charge is tossed out in court there should be no associated CVOR charges.

And accidents isn’t the only area where you get sanctioned with CVOR points when you win in court. CVSA roadside inspections work the same. Get a charge for bad brakes dismissed or withdrawn in court and the CVOR inspection point for the “bad” brakes, remains.

Q: The CVOR system seems to be the hallmark of truck compliance in Ontario. CVOR is referenced in the Highway Traffic Act and the Regulations, but what about those areas that matter: the compliance thresholds, CVOR point tables, etc.?

A: Unlike the driver demerit point system, which is contained in Regulation, CVOR points are not. They have been arbitrarily established and are equally so assigned. Carriers can in fact be sanctioned by a system, many components of which are not prescribed in the Highway Traffic Act, yet in many court and sanction proceedings, the CVOR record is used as primary evidence against the carrier.

According to Carole McAfee Wallace, a lawyer with WeirFoulds LLP, “to impose CVOR points without affording the carrier an opportunity to confront the evidence relied upon for the points, is a denial of the rules of natural justice and a breach of the duty of fairness”. Heavy sounding stuff!

Q. When do two vehicles equal one vehicle?

A. When you calculate your Ontario CVOR fleet size. Only commercial motor vehicles can be included for fleet size calculations, which in my view is neither fair nor reasonable. Further, not allowing for trailers to be considered in the calculation simply does not reflect the way the system works on the road. The tractor or trailer, or both can be subject to charges, inspections etc., and consequently, CVOR points, for one, the other, or both. In other words, you have one vehicle for CVOR purposes, yet two vehicles in a combination rolling down the road. Go figure!

Q: A couple of issues back you cited a Provincial Judge’s decision in London that effectively determined that a 53′ semi-trailer is designed for the carriage of vehicles and therefore tractor wheelbase is not a determining factor. My tractor unit is 259 inches and was pulling a 53′ trailer. I received a ticket for “overlength semi trailer”. What’s the scoop? I thought I was now legal.

A: I strongly recommend that any carrier charged with such an offence file for a trial date. Since the London decision some strange things have happened. One J.P. refused to accept Judge McGrath’s concurrence with the definition of the word “designed” in Black’s Law Dictionary, and found the defendant guilty. I have been apprised of a couple of instances where Crown prosecutors have scoffed at the decision of a higher court and some officers who feel the decision was wrong.

Fair enough. But the reality is that a Provincial Court Judge ruled in favour of the Appellant from a lower court decision and the charge was dismissed. And a reading of the decision in my opinion is as crystal clear as the law itself. Semi-trailers designed for the carriage of vehicles are exempt from such restrictions as tractor wheelbase. A 53′ semi-trailer is obviously designed to carry a whole range of vehicles along with the endless list of other general commodities. For those who think this section of the HTA only applies to car carriers, read the section and the accompanying definitions, particularly “vehicle”.

Blair Gough is a consultant to the trucking industry and can be reached at 905-689-2727.


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